New York’s redistricting court decision did more than split the state’s primary election. It also set the stage for a one-off test of a type of open primary election, where registered voters can change their party affiliation up until, and including on Primary Day itself, August 23rd.

Under state election law, the deadline to change one’s party affiliation is normally February 14th, and then the window is closed until one week after the June primary. That meant voters who wanted to change parties for the June 28th primary for statewide and Assembly races needed to submit their updated registration more than four months before the election. That’s not the case for New Yorkers looking to vote in the August primary for new congressional and State Senate races.

Hear WNYC's Brigid Bergin on "Morning Edition" explain the loophole in election law that's effectively created an open election for the August 23rd primary.

When the court ordered a second primary date for August as part of the redistricting decision, it created a loophole in the law permitting people to change parties or switch from being an unaffiliated voter to a party member right up until the election. The law was written assuming there would only be one primary, and it would be in June.

The glitch in election law opens primary races up to voters who might not otherwise be tuning in because they didn’t think they had a competitive party contest. It also may change the calculus for candidates competing in crowded fields that are seeking every advantage to overcome their opponents, whether that’s appealing to voters across the proverbial aisle or asking those who are not currently party members to join their ranks, at least for a day.

“This year is an anomaly,” Vincent Ignizio, deputy executive director of the New York City Board of Elections (BOE), told Gothamist, noting that voters can change their party affiliation now or by requesting an affidavit ballot at the voting booth.

“By way of the courts, and without intention, it will test an open primary-type system in New York,” he said.

In New York City, which has more than 5 million registered voters, only 3.4 million are registered Democrats. That’s also the party that tends to have the city’s most competitive primary races. That means more than 1.6 million voters who are members of other parties, or no party at all, could see what’s happening in the district where they live and may want to change parties just for this election.

By way of the courts, and without intention, it will test an open primary-type system in New York.

Vincent Ignizio, deputy executive director of the New York City Board of Elections

For example, if a registered Republican living on the Upper East Side of Manhattan decided to update their registration this week, that person could cast a ballot in the hotly contested 12th Congressional District Democratic primary. The person could also request an affidavit ballot during early voting beginning August 13th through August 21st, or on Primary Day.

Similarly, a voter who is registered with the Working Families Party and living in Park Slope could still cast a ballot in the new, crowded 10th Congressional District Democratic primary by simply updating their registration or requesting to cast an affidavit ballot.

This also holds true for State Senate primaries, like the competitive Democratic primary for the new 59th Senate District.

New York’s long-standing closed primary system was modified in 2019 to reduce the amount of time between when a voter had to select their party and the next primary election. It went down from a year to a four-month window before the June primary election. That law first took effect on Valentine’s Day in 2020.

“These are the unforeseen consequences of adding a second primary into the election mix in May,” said Dustin Czarny, chair of the Democratic caucus for the New York State Election Commissioners Association and the Democratic elections commissioner for Onondaga County.

These are the unforeseen consequences of adding a second primary into the election mix in May.

Dustin Czarny, chair of the Democratic caucus for the New York State Election Commissioners Association

While Czarny stressed the deadline for first-time voters to register or update their address is still Friday, July 29th, and must be received by the BOE on August 3rd, when it comes to party changes, “I don’t believe the public knows about this,” he added.

Even proponents of open primaries, which take several forms but often allow more than just registered party members to vote in the primary, were surprised to learn about this August 23rd loophole when contacted by Gothamist on Monday.

“I think it’s great,” said John Opdycke, executive director of Open Primaries, a national nonprofit that advocates for open primaries in states across the country. “I think that everybody running in those races should take advantage of this opportunity and say, ‘We could campaign to independent voters, those voters that we typically ignore.'”

I think that everybody running in those races should take advantage of this opportunity and say, ‘We could campaign to independent voters, those voters that we typically ignore.'

John Opdycke, executive director of Open Primaries

Opdycke has long fought for open or nonpartisan elections in New York. Back in 2003, he was one of the supporters of a ballot referendum to establish nonpartisan elections for municipal offices. The initiative failed “overwhelmingly,” according to the New York Times.

“We got crushed,” he said.

Back in 2016, when the city BOE illegally purged more than 120,000 voters ahead of the presidential primary, unaffiliated voters sued the elections agency in federal court. They sought to open the primary to voters who were not registered Democrats at the time of the election. That case was also unsuccessful.

In what is widely expected to be a very low-turnout election, Ignizio, the city BOE’s deputy director, said the BOE hopes this glitch in the traditional system actually inspires more people to pay attention and vote.

“We're hoping that more people say, ‘you know what, I'm gonna go and vote in whichever primary they want,’” he said.